Opinion
J-S50030-18 No. 692 WDA 2018
10-10-2018
IN THE INTEREST OF: I.A., S.A., AND I.A. APPEAL OF: R.A., JR., NATURAL FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated February 16, 2018
In the Court of Common Pleas of McKean County
Civil Division at No(s): CP-42-DP-0000038-2013, CP-42-DP-0000039-2013, CP-42-DP-0000061-2017 BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J. MEMORANDUM BY OTT, J.:
R.A., Jr. ("Father"), appeals from the February 16, 2018 permanency review orders in the Court of Common Pleas of McKean County that suspended his supervised visits with his daughters, I.A., born in June 2011, and S.A., born in October 2012, and his son, I.A., born in March 2015 (collectively, "Children"). We remand for a supplemental opinion pursuant to Pa.R.A.P. § 1925(a).
The subject orders arise from the trial court placing Children in the emergency protective custody of McKean County Children and Youth Services ("CYS") on June 1, 2017, and adjudicating them dependent on August 28, 2017, due to Father's mental health and deplorable home conditions. Father and C.C. ("Mother") (collectively, "Parents") were required to obtain mental health and drug and alcohol evaluations, follow through with all recommended treatment, and participate in random drug screens, inter alia. Order, 8/28/17, at 2. The court directed CYS to establish a schedule and a location for visits between Parents and Children. Id. CYS scheduled supervised visits in Parents' home every weekend for four hours and every Monday evening for two hours. N.T., 2/16/18, at 13.
The deplorable home conditions included, but were not limited to, a lack of running water and a broken sewage system.
The record reveals that the court previously adjudicated the older children, I.A. and S.A., dependent in November 2013, due to Parents' mental health and substance abuse problems and deplorable home conditions. The court returned I.A. and S.A. to Parents' custody in June 2014, but they remained under the protective supervision of CYS until July 2015.
The first permanency review hearing occurred on November 13, 2017. The trial court found, in part, that Father has difficulty controlling his anger when dealing with CYS staff and service providers, and that he had a concerning number of pets in his home, including seven dogs and multiple lizards. The court explained:
When the court raised these concerns [about the dogs in Father's home,] Father immediately indicated that the dogs were not his and if they were he would resolve the issue by "putting a bullet in their heads." The court then, for Father's benefit, tried to explain that that would not resolve the problem and it would only create worse issues such as Father facing animal cruelty charges. Father became more and more agitated over the next several minutes until the point that he jumped up in the middle of the hearing and
very loudly indicated that his attorney could deal with it as he was leaving. His case manager left to try [to] calm Father down. The court indicated to Father's case manager [that] Father could return if he wanted to and if he could remain calm. Father could be then heard yelling in the hallway for several minutes about the "system" with obscenities thrown into it. Security was eventually able to have Father leave the building.Order, 11/13/17, at 2. The court stated, "Regretfully the failure to get beyond this hostility after years of attempts [by CYS and service providers] demonstrates that it is unlikely that the situation will change in the future." Id. at 2-3. The court stated that the "goal is still reunification," but directed CYS to establish a concurrent permanency goal. Id. at 3. The court directed that visits continue between Parents and Children.
The next permanency hearing occurred on February 16, 2018, during which CYS presented the testimony of its caseworker, Ed McQuillen. Father testified on his own behalf, and he presented the testimony of both the behavioral specialist and the mental health case manager from The Guidance Center, Laura Rhodes and Terry Carr, respectively.
Children were represented during the hearing by a guardian ad litem ("GAL"). While Father's appeal was pending, this Court extended the requirements of In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) and its progeny to dependency actions generally. See L.B.M., supra (the issue decided was whether 23 Pa.C.S. § 2313(a), which mandates the appointment of counsel for children involved in contested involuntary termination of parental rights proceedings, is satisfied by the appointment of a GAL provided that the GAL is an attorney.); see also In re T.S., ___ A.3d ___, 2018 Pa. LEXIS 4374 (Pa. 2018) (holding that the trial court did not err in allowing the children's GAL to act as their sole representative during the termination proceeding because, at two and three years old, they were incapable of expressing their preferred outcome.); In re J'K.M., ___ A.3d ___, 2018 Pa. Super. LEXIS 721 (Pa. Super. 2018) (reversing order denying appointment of a separate counsel for dependency proceedings where there was a conflict between the child's best interests and legal interests). In this case, Children were ages six, five, and two at the time of the subject proceeding. Accordingly, if the trial court determines there is a conflict between the wishes of the older children, I.A. and S.A., and their best interests, they must have separate legal counsel to advocate for those disparate interests in future proceedings.
The court issued the subject permanency review orders on February 16, 2018, wherein it found, "[Father] is struggling with mental health issues including an inability to control his anger." Order, 2/16/18, at 2. The court explained that, during cross-examination, Father "went on a verbal and loud tirade from the witness stand and then left. Again, as in the previous hearing, he could be heard yelling obscenities in the hallway of the courthouse." Id. The trial court suspended Father's visits with Children for the following reasons:
1) Father's failure to follow through with previous requirements; 2) his hostility to CYS staff during visits; 3) his alarming actions at the last two hearings; and, 4) troubling statements he has made to the children during visits. . . .Order, 2/16/18, at 3.
Mr. McQuillen, the CYS caseworker, testified that Father stated to his oldest child, I.A., at the conclusion of a supervised visit, "Now, when you go back to the foster home, you be as bad as you possibly can when you get there." N.T., 2/16/18, at 23. In addition, Ms. Rhodes, the behavioral specialist, testified that Father told S.A., "to punch the dog in the jaw." Id. at 32.
On April 18, 2018, Father filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b)., The trial court filed its Rule 1925(a) opinion on April 25, 2018.
The subject order, dated February 16, 2018, was filed on March 27, 2018. However, the order was not entered on the juvenile court docket in accordance with the requisite rules of appellate and civil procedure. Rule 108(b) provides that the date of entry of an order is "the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)." Pa.R.A.P. 108(b). Rule 236(b) requires that "[t]he prothonotary shall note in the docket the giving of the notice. . . ." Pa.R.C.P. 236(b). In Frazier v. City of Philadelphia , 735 A.2d 113, 115 (Pa. 1999), our Supreme Court held that the 30-day appeal period is not triggered until the clerk makes a notation on the docket that notice of entry of the order has been given. See Pa.R.A.P. 903(a) (providing that a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken."). As such, in this case, Father's appeal period was not triggered; therefore, his notice of appeal, filed on April 18, 2018, is not untimely.
The record reveals that Father filed one notice of appeal from the permanency review order, which was copied and included in the separate records. We caution Father that the correct procedure in this circumstance is to file a separate notice of appeal for each child. See Pa.R.A.P. 341, Note ("Where . . . one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed."). Further, our Supreme Court has recently held that, in all future cases, the failure to file separate notices of appeal from an order resolving issues on more than one docket will "require[] the appellate court to quash the appeal." Commonwealth v. Walker , 185 A.3d 969, 977 (Pa. 2018). Because Father filed his notice of appeal before our Supreme Court filed Walker , we do not quash his appeal.
The Rule 1925(a) opinion is one page in length.
Father presents two issues for our review:
A. Did the trial court err when it suspended all contact between Father and [C]hildren without the finding by clear and convincing evidence that such contact poses a grave danger?Father's brief at 7.
B. Was there clear and convincing evidence presented to the trial court to find that contact between Father and [C]hildren posed a grave danger to [C]hildren?
This Court reviews dependency cases for an abuse of discretion. We must "accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but [we are] not require[d] . . . to accept the lower court's inferences and conclusions of law." In the Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation omitted).
This Court has explained that the standard against which visitation between parents and their dependent children is measured depends upon the goal mandated in the family service plan. See In re C.J., 729 A.2d 89 (Pa. Super. 1999). Where the permanency goal is reunification, a court may not deny or reduce visitation unless it poses a grave threat to the child. Id. at 95. This standard is satisfied when the parent demonstrates a severe mental or moral deficiency that constitutes a grave threat to the child. Id. However, where the goal is no longer reunification, the court may suspend, limit, or deny visitation if it is in the best interests of the child. Id. ("The 'best interests' standard, in this context, is less protective of parents' visitation rights than the 'grave threat' standard.").
Initially, in this case, we address the threshold question of whether the permanency orders suspending Father's visitation are appealable. In its Rule 1925(a) opinion, the trial court concludes that Father's appeal should be quashed because the orders are not final and appealable. See Trial Court Opinion, 4/25/18. We disagree insofar as prevailing case law establishes that the orders suspending Father's visitation are appealable. See In re C.B., 861 A.2d 287, 289 n. 1 (Pa. Super. 2004) (concluding that the order suspending the father's visitation was a final, appealable order pursuant to In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003), which held, "An order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final when entered.")).
In its Rule 1925(a) opinion, the trial court states, even if the orders are appealable, Father's issues are without merit because it found, in part, that "Father's mental health concerns have worsened and he presents a greater danger to the children and others at this time. Therefore, it was appropriate for the visits to be suspended until, and if, Father demonstrates progress." Trial Court Opinion, 4/25/18. Significantly, the trial court does not reveal whether it applied the "grave threat" or "best interests" standard in suspending Father's supervised visitation. Likewise, the court did not indicate in the subject orders or on the record in open court which standard it applied. See N.T., 2/16/18, at 79-87.
In addition, at the conclusion of the testimonial evidence, the court stated on the record that it intended to change the goal as to Father. See id. at 85-86. However, in the subject orders, the court did not indicate that it changed Children's permanency goal from reunification. In his brief, Father contends that reunification remains the goal and, therefore, that the "grave threat" standard applied. In contrast, both CYS and the GAL contend in their briefs that the orders changed the goal from reunification and, therefore, that the "best interest" standard applied. Accordingly, we are constrained to remand this case for the trial court to issue a supplemental Rule 1925(a) opinion within 14 days, wherein it shall clarify whether it intended to change the goals from reunification in the subject orders.
Case remanded. Jurisdiction retained.